The opinion of the court was delivered by: Judge Beryl A. Howell
Misc. Case No. 11-00073 (BAH)
This matter presents competing First Amendment interests between a non-party reporter asserting a First Amendment reporter's privilege and a plaintiff seeking to vindicate his First Amendment free speech rights. The plaintiff Bruce Peck, a former street performer, has filed a lawsuit, pursuant to 42 U.S.C. § 1983, against the City of Boston in the District of Massachusetts. Peck v. City of Boston, Civil No. 09-10606-JGD (D. Mass). On January 26, 2011, the plaintiff served a subpoena noticing the deposition of Donovan Slack, a newspaper reporter, who authored a story concerning Boston's "crackdown" on street performers. Slack Mot. Quash, David McCraw Decl. ("McCraw Decl."), Ex. A. Specifically, the plaintiff seeks testimony from this reporter about space restrictions imposed by the city on street performers at the city's Faneuil Hall beginning in the summer of 2008 and continuing in force today. McCraw Decl., Ex. B, Peck v. City of Boston,Civil No. 09-10606-JGD, Memorandum of Decision and Order on Cross-Motions for Summary Judgment, Nov. 1, 2010, at 3-4. On February 14, 2011, Ms. Slack moved to quash the subpoena directed toward her. After review of the memoranda filed in support and opposition to the motion, the accompanying declarations and applicable law, the Court GRANTS Ms. Slack's Motion to Quash for the reasons stated below.
Ms. Slack is a reporter for The Boston Globe (hereinafter "the Globe"), a daily newspaper based in Boston, Massachusetts. Slack Mot. Quash, Donovan Slack Decl. (hereinafter "Slack Decl."), at ¶ 1. On August 1, 2008, the Globe published an article written by Ms. Slack entitled "A Rhythmic, Rocking Cradle of Liberty No More, City Corrals Street Artists at Faneuil Hall." Id. at ¶ 3. In this article, Ms. Slack reported on the City of Boston's restrictions on street performers working near Faneuil Hall, a historic landmark and tourist attraction located in downtown Boston. Id. at ¶¶ 3-4. The article specifically relayed that in late July 2008 "city security officers descended on the plaza around nearby Faneuil Hall and imposed new restrictions on the artists who have become accustomed to entertaining the crowds on the historic site, known on tourist brochures as the Cradle of Liberty." McCraw Decl., Ex. A, at 1. The article further stated that "[Boston Police Officers] shooed away clowns and caricature artists. They ordered music and dance acts to contain their performances to a single, small patch of brick -- measuring 15 feet by 15 feet -- near a stand of trees." Id. The article contains quotes from a number of individuals, including Boston Mayor Thomas Menino's spokeswoman, Dot Joyce; street performers Gayle Gazdik and James Geddie; Jennifer Achevarria, a Faneuil Hall restaurant manager; and Sarah Moore, a tourist visiting Boston with her family from Quebec. Id. The article also identifies various other individuals in the area, including other street performers affected by the city's new regulations, such as "a group of drummers calling themselves the 'Bucket Boys,'" a caricature artist named "Madman with a Marker," and "an eight-person dance troupe called 'Breeze Team.'" Id. In gathering information for the story, Ms. Slack states that she visited Faneuil Hall and its surrounding area on a single date, July 31, 2008, and she has no other knowledge regarding the alleged restrictions placed upon street performers. Slack Decl., at ¶¶ 4-6.
On April 16, 2009, the plaintiff filed a lawsuit in the U.S. District Court for the District of Massachusetts, alleging that the City of Boston violated his constitutional right to free speech by restricting the area in which he could perform. Pl.'s Opposition Mot. Quash, Ex. J, Peck v. City of Boston,Civil No. 09-10606-JGD, Compl., Apr. 16, 2009. In the course of the lawsuit, the plaintiff submitted Rule 26(A)(1) initial disclosures, in which he identified four people likely to have discoverable information to support his claims: the plaintiff himself, street performer Gail (Pizzaz), an individual named Stephen Baird, and Donovan Slack. Pl.'s Opposition Mot. Quash, Ex. G, Peck v. City of Boston,Civil No. 09-10606-JGD, Pl.'s Initial Disclosures, July 10, 2009. During discovery, the plaintiff did not attempt to depose Ms. Slack, but did depose several other individuals, including Steve Crosby, the Deputy Commissioner responsible for Faneuil Hall's management; Chief Michael Galvin, who requested metal barricades be placed around Faneuil Hall, and Detective Sergeant Dan Downey, who was the police supervisor at Faneuil Hall in July 2008. McCraw Decl., at ¶13.
Following the discovery period, the plaintiff and the defendant filed cross-motions for summary judgment. The district court denied both motions on November 1, 2010, stating that factual issues remained in dispute, including (1) the purpose of the City's restrictions; and (2) the size of the designated performance area. Peck v. City of Boston, No. 09-10606, 2010 U.S. Dist. LEXIS 116128, at *18-21 (D. Mass. Nov. 1, 2010). The court stated that these facts are necessary to determine the government's intent in regulating street performances, and whether alternate channels of communications were available to adversely affected performers. Id. at *13 ("the question whether the City's policy is constitutional depends on whether it is narrowly tailored to serve a significant government interest and whether it leaves open ample alternative channels of communication. Because the record establishes that there are questions of material fact on these issues, neither party is entitled to summary judgment."). To resolve these factual disputes, the court scheduled trial for April 11, 2011. Slack Mot. Quash, at 2.
On January 26, 2010, the plaintiff served Ms. Slack with a subpoena, issued by the U.S. District Court for the District of Columbia, to be deposed in connection with the plaintiff's case against the City of Boston.*fn1 In a letter sent with the subpoena, plaintiff's counsel explained:
Our primary purpose in seeking Ms. Slack's deposition is to confirm Ms. Slack's observations presented in her August 1, 2008 Boston Globe article concerning the physical layout of the restricted street performance area in Faneuil Hall and statements made by City officials that were quoted in the article.
McCraw Decl., Ex. C, Letter from Shane Early to David McCraw dated Jan. 26, 2011. Ms. Slack filed the instant motion to quash, on February 14, 2010, asserting that the reporter's privilege "founded in the First Amendment" allows her to avoid compliance with the plaintiff's subpoena. Slack Mot. Quash, at 1.*fn2 Since the date of the noticed deposition has passed and the trial is scheduled for April 11, 2011, the plaintiff seeks a prompt ruling on this matter in order to have the opportunity to re-schedule the deposition prior to the date of the trial. Pl.'s Opposition Mot. Quash, at 2, 10.
The Federal Rules of Civil Procedure grant a party broad power to gather information in connection with its case. Parties may obtain discovery "regarding any non-privileged matter that is relevant to any party's claim or defense," even if the material would not admissible at the trial. FED. R. CIV. P. 26(b)(1). A person who withholds otherwise discoverable material or testimony based upon a claim of privilege bears the burden of demonstrating that the privilege applies and that withholding is excused. See In the Matter of an Application to Enforce Administrative Subpoena of the U.S. Commodities Futures Trading Comm'n v. McGraw-Hill Co., Inc., 507 F. Supp. 2d 45, 50 (D.D.C. 2007); Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 120 n.4 (D.D.C. 2002); see also FED. R. CIV. P. 26(b)(5); FED. R. CIV. P. 45(c)(3). When this burden is met, Courts are directed to quash or modify a subpoena that requires "disclosure of privileged or other protected matter, if no exception or waiver applies." FED. R. CIV. P. 45(c)(3).
Courts have recognized a qualified privilege under the First Amendment for reporters to protect them from compelled disclosure of information, which they have obtained as part of their news gathering role. See Zerelli v. Smith, 656 F.2d 705, 711 n.39 (D.C. Cir. 1981) ("The Supreme Court explicitly acknowledged the existence of First Amendment protection for news gathering," citing Branzburg v. Hayes, 408 U.S. 665, 681, 707 (1972) (emphasizing that "news gathering is not without its First Amendment protections.")); Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir. 1972) (instructing courts to limit impingements on press freedom and "make compelled disclosure by a journalist a last resort after pursuit of other opportunities have failed."); see also Hutira, 211 F. Supp. 2d at 118 ("Courts have recognized that the First Amendment provides journalists with a qualified privilege against compelled disclosure of information"). The reporter's privilege stems from recognition of the "preferred position of the First Amendment" in our society and "the importance of a vigorous press." Zerelli, 656 F.2d. at 712. Courts have minimized impositions upon the press, particularly when burdens may have a chilling effect on a reporter's ability to investigate and gather news. Carey, 492 F.2d at 639 (courts ...